California Library Association:

Library Copyright Liability and Pirating Patrons

The following article appeared in California Libraries May 2001 (Vol. 11 No. 5). Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.

If my patrons are using my library's computers to copy material illegally, can my library be on the hook?

It is possible. If the library facilitates the copying, has the right and ability to control the copying and gets a financial benefit, it can be sued under the legal doctrine of "vicarious infringement." The library need not have known about the infringement. Another legal claim, though less likely in the library environment, is "contributory infringement." To be contributorily liable, the library must have known (or should have known) of the infringing act, and knowingly induced, caused or contributed to the act of infringement.

Our library doesn't get any financial benefit when patrons infringe. Can we still be "vicariously liable?"

The argument that you get no financial benefit will help if you go to court. On the other hand, the copyright owner will try to argue that you are getting some financial benefit -- perhaps a need to buy fewer copies of a cd-rom, or a less extensive license than you really need. Even if the library argues that it would not buy more copies, or that the source is a free Internet resource, a financial benefit can result when material "acts as a draw" for customers, as demonstrated in the recent Napster decision. [i] If the library's increased user base helps it get increased funding, a copyright owner could argue that the library is getting a financial benefit.

Patrons have used our photocopiers for many, many years. We even get some direct financial revenue from this. Yet we've never been sued for "vicarious liability" for copyright infringement.

You're right to notice that the underlying issue (library liability for patron copying) is exactly the same as when patrons use library photocopiers. However, the American Library Association lobbied successfully for a specific copyright provision that protects libraries when patrons use photocopiers. Section 108(f) exempts library liability for the unsupervised use of "reproducing equipment located on its premises" provided that the equipment displays a notice that the making of a copy may be subject to the copyright law.[ii] You may notice that the law doesn't specifically say "photocopiers only."

What must the photocopier notice say?

The law does not specify. Many libraries use the following notice, in at least 18-point type size:

NOTICE: THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17 U.S. CODE) GOVERNS THEMAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHTED MATERIAL. THE PERSON USING THIS EQUIPMENT IS LIABLE FOR ANY INFRINGEMENT.

What if the library makes the copy, at the request of a patron, as in interlibrary loan, or a faxed or emailed request?

The law requires that a specific notice be posted at the place the orders are accepted. It must say:

NOTICE WARNING CONCERNING COPYRIGHT RESTRICTIONS

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or

other reproductions of copyrighted material.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research," If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement.

This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. [iii]

The displayed warning must be printed onheavy paper or other durable material. It must have at least 18-pointtypeface. The sign must be displayed prominently, in such manner and locationas to be clearly visible, legible, and comprehensible to a casual observerwithin the immediate vicinity of the place where orders are accepted. [iv]

If we make the copies, it's usually because we got the request by fax or email. Our patrons are not going to see this notice!

Technically, if you display the notice where the orders are received, you are in compliance with the law. To comply with the spirit of the law, it's recommended that you routinely send the notice as a part of your email or fax reply. The law also requires that the library to put the work's own copyright statement (e.g. Copyright © 2001 Mary Minow) on the copy. This statement is typically found at the beginning or end of a work. If and only if no copyright statement for the actual work can be found, the library may substitute a statement that the work may be protected by copyright.[v] Libraries often use a rubber stamp,"Warning! This work may be protected by copyright." for this purpose.

Should I put up the same notice next to my computers or computer printers where patrons make copies?

Yes. Post the notice, not only by your photocopiers, but also next to any "reproducing equipment" that can print or make copies of digital material.

Will the notice protect me if patrons make copies of digital material that the library leases from a vendor?

No. Bear in mind any contractual obligations that your library (its parent institution, or consortium) signed in order to get the digital information. You must comply with the contract agreement as well as copyright law. That is, if your library's contract says that you will police all patron copying (not a good idea!), you are obligated to do so. For an excellent source on negotiating license agreements that are geared for library patrons, see Yale University's liblicense website. It gives sample contract clauses beneficial to libraries, an excellent glossary of contract terms, and other useful tips.[vi]

I don't need to worry about library patrons making illegal copies off our Internet computers, when everything on the Internet is free anyway, right?

The bad news is the Internet is not always as free as it seems. For example, pirated content (music, movies, for example) is posted to the Internet, and patrons who copy that material can be infringing copyright. When patrons print or copy information from "legitimate" websites, they may be exercising their "fair use" rights, but such rights are not automatic, and depending on the circumstances, the patrons may be infringing on the copyright owner's rights of reproduction, adaptation or distribution.

The good news is that your library can get some protection under a relatively new provision in the copyright law, known as the Online Service Provider Provisions of the Digital Millennium Copyright Act.[vii]

Is my library is covered under the Online Service Provider (OSP) provisions?

If your library offers Internet access to the public, it is considered an online "service provider" with regard to copyright law. This is because it provides connections for digital online communications for users, of material of the user's choosing, without modifying the content sent or received. Online "service provider" refers to a provider of online services or network access or operates facilities for the provision of these services.[viii]

What protection does my library get under the OSP provisions?

It depends on what copying activity your library computers are involved with. The law distinguishes between four different functions that library computers are involved with when electronic copies are made:

(1) Transitory copies

(2) Cached copies

(3)Information residing on library computers at the direction of users, and

(4)Information location tools such as links or online directories

The law automatically protects your library for the "transitory" and some of the "cached" copies it makes, under the conditions below. The law can protect your library for "information residing on systems" and "information location tools," if the library designates an agent and then follows specified procedures in Section 512(g).[ix]

The first two categories refer to automatic transmissions.

(1) Transitory copies - the library is automatically not liable, even if it does not register an agent with the Copyright Office.

Transitory copies are made automatically in the operation of a network, where the library computers act merely as a conduit. The library is not liable for copies made in transient transmissions as long as the library doesn't (1) initiate the transmission (2) facilitate the transmission by any other than automatic means, (3) select the recipients of the materials by any other than automatic means (4) make copies of the materials for any longer than ordinarily necessary to transmit the materials to the user or (5) modify the materials transmitted.[x]

(2) Cached copies - the need for the library to register an agent to limit the library's liability is not entirely clear. The law refers to notification in some circumstances,[xi] so as a precaution it is advised for a library to register an agent with the Copyright Office.

Computers can be set to cache copies of materials in order to save bandwidth and reduce waiting time on subsequent requests for the same material. The library is not liable for cached copies if the library (1) doesn't itself make the material available, (2) the patron transmits the copy to a third party, (3) the materials are stored only by automatic means. The following conditions must be met: the library (A) must not modify the materials, (B) must comply with general industry standards with regards to refreshing, reloading or updating material, (C) must not interfere with technology associated with the material that returns "hit" information to the party that posted the material (D) must not interfere with passwords or fee requirements (E) must expeditiously remove or disable access upon notification of claimed infringement. [xii]

The third and fourth categories do not involve "automatic" copying by computers, and libraries can be liable. However, if the library registers an agent and follows procedures outlined in Section 512 of the Copyright Act (see below), it can greatly limit its liability.

(3) Information residing on library computers at the direction of users

The library is not liable if storage of information on library computers is done at the direction of patrons if the library (A) does not have knowledge that the material is infringing, (B) does not receive a financial benefit from the infringing activity, if the library has the right and ability to control the activity, and (C) upon notification of claimed infringement responds expeditiously to remove or disable access to the material.

The library must designate an agent to receive notifications of claimed infringements.

(4) Information location tools such as links or online directories

What if the library puts a link on its homepage to a site filled with pirated music or videos? The library is not liable if it (A) does not have knowledge that the material is infringing, (B) does not receive a financial benefit directly from the infringing activity, if the library has the right and ability to control the activity, and (C) upon notification of claimed infringement, responds expeditiously to remove or disable access to the material.[xiii]

The library must designate an agent to receive notifications of claimed infringements. How does a library "designate an agent" to receive notifications of claimed infringements, as required for the last two categories, "information residing on library computers" and "information location tools?"

There are tworequirements for designating an agent

1) File the agent's contact information with the Copyright Office. The Copyright Office website explains how to designate an agent.[xiv] There is a $20 fee. Although you are not required to use a specific form, the site gives a suggested format for providing the required information: Name, address, phone number email of agent, as well as name and address of the library. [xv] To check to see if your library (or its parent institution) has designated an agent, you can check the Copyright Office's website, which lists all agents . [xvi]

2) Post the agent's contact information on your own website. An example of this can be seen at the Contra Costa County Library website. [xvii]

If I designate an agent, am I "inviting" copyright owners to go after my library?

Probably not. The person who signs the notice is subject to the penalty of perjury. The law states that the copyright owner's notice to the library must be in writing, directed to the designated agent and include the following.

Legal claim by copyright owner to library must include:

a physical or electronic signature of a person authorized to act on behalf of the copyright owner
identification of the work that is allegedly infringed
identification of the material that is to be removed (or access disabled)
contact information of the complaining party
a statement that the above information is accurate, under penalty of perjury [xviii]

Failure to comply substantially with these requirements means the notification will not be valid.

If I get a legal claim that meets these requirements, what must I do?

To gain protection under this provision of the Copyright Act, you must promptly remove or block access to the item(s) in the notice.

I see that the Act has procedures for counter notification by a party who thinks that the "take down" was wrongly done. How does this apply to my library?

This provision applies mainly to mainstream Internet service providers, who may be taking down documents posted by subscribers.[xix] The subscribers then have an opportunity to respond. It is not as likely to apply to libraries, especially outside of a school or university setting. Libraries could possibly take down material that a patron stored on a library computer (an act that was probably not consistent with library policy, whether or not the document was infringing.) Or a library could take down a link or directory that the library itself posted, again not a likely source for an outside complaint. Nevertheless, if there is a "counter notice" to the library to "put back" the material, because the patron says that it is not infringing copyright, the library must "put back" the material within two weeks, unless the matter is referred to court.

For further information see Section 512(g) of the Copyright Act, [xx] and read a helpful legal memo by Arnold Lutzker, written for the Association of Research Libraries.[xxi] The American Library Association also has a question and answer sheet on this provision.[xxii]

Doesn't it invade the privacy of my patrons if the library is checking to see what copies they are making?

The Act explicitly states that the library is not required to monitor its service or access material in violation of law, (such as the Electronic Communications Privacy Act) in order to be eligible for liability limitations. [xxiii]

What happens if my library designates an agent, and then decides not to take down a link or follow through on the rest of the procedures?

That's your library's choice. You may prefer to handle the claim in another way. The OSP provision merely provides you certain protections if you wish to seek them. As always, seek legal counsel in handling any legal claim.

Find out more about how to protect your library at a video presentation on May 16, 10:30 a.m. Hear U.S. Copyright Office Attorney Tanya M. Sandros at the Sunnyvale Center for Innovation, Invention and Ideas

Sc[i]3 www.sci3.com or call 408.737.4945 Located in the Silicon Valley. Reservations required.

Thanks go to Robert Kasunic, Newton Minow and Mary Clare Sprott for their help with this article.

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[i] A&M Records v. Napster, (9^th Cir. Filed February 12, 2001 Amended April 3, 2001), citing Fonovisa v. Cherry Auction, Inc., 76 F. 3d. 259 ,263-264 (9^th Cir. 1996)(stating that financial benefit may be shown "where infringing performances enhance the attractiveness of a venue.") http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=0016401&exact=1 (visited 4/3/01)

[ii] "Nothing in this section - (1) shall be construed to impose liability for copyright

infringement upon a library or archives or its employees for the

unsupervised use of reproducing equipment located on its

premises: Provided, That such equipment displays a notice that

the making of a copy may be subject to the copyright law;" 17 U.S.C 108(f)(1) http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=108 (visited 04/03/01)

[iii] 37 CFR § 201.14(b) A Display Warning of Copyright and an Order Warning of Copyright shall consist of a verbatim reproduction of the following notice, printed in such size and form and displayed in such manner as to comply with paragraph (c) of this section.

[iv] 37 CFR § 201.14(c) Form and manner of use. (1) A Display Warning of Copyright shall be printed on heavy paper or other durable material in type at least 18 points in size, and shall be displayed prominently, in such manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted.

[v] 17 U.S.C.§108(a)(3)(2001)

[vi] Yale University Library. Liblicense: Licensing Digital Information, A Resource for Librarians

http://www.library.yale.edu/~llicense/index.shtml (visited 04/04/01). See also Arlene Bielefield and Lawrence Cheeseman, Interpreting and Negotiating Licensing Agreements: A Guidebook for the Library, Research and Teaching Professions (Neal-Schuman 1999)

[vii] 17 U.S.C. §512 (2001)

[viii] 17 U.S.C. §512 (k)(1)(2001)

[ix] 17 U.S.C. §512(g)(2001)

[x] 17 U.S.C. §512(a)(2001)

[xi] 17 U.S.C. §512(b)(2)(E)(2001)

[xii] 17 U.S.C. §512(b)(2001)

[xiii] 17 U.S.C. §512(d)(2001)

[xiv] http://www.loc.gov/copyright/onlinesp/index.html#agent (visited 04/04/01)

[xv] 17 U.S.C. §512(c)(2001)

[xvi] http://www.loc.gov/copyright/onlinesp/list/index.html (visited 04/04/01)

[xvii] http://www.contra-costa.lib.ca.us/policies/policies.html (visited 04/18/01)

[xviii] 17 U.S.C. §512(c)(3)(2001)

[xix] 17 U.S.C. §512(g)(2001)

[xx] 17 U.S.C. §512(g)(2001)

[xxi] Arnold P. Lutzker, Susan J. Lutzker, Carl H. Settlemyer, III, "The Digital Millennium Copyright Act: Highlights of New copyright Provision Establishing Limitation of Liability for Online Service Providers," http://www.arl.org/info/frn/copy/osp.html (visited 04/04/01) See also http://www.mlanet.org/government/dmca/ospanalysis.html (visited 04/18/01)

[xxii] American Library Association. Office for Information Technology. "OITP Intellectual Property Fact Sheet: FAQs about OSP Registration." (June 1999) http://www.ala.org/oitp/faqsheet.pdf (visited 04/18/01)

[xxiii] 17 U.S.C. §512(m)(2001)

Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.

Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.